Adele T.,1 Complainant,v.Margaret Weichert, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

0120181420 (E.E.O.C. Aug. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Adele T.,1
Complainant,

v.

Margaret Weichert,
Acting Director,
Office of Personnel Management,
Agency.

Appeal No. 0120181420

Agency No. 2017015

DECISION

On March 19, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 12, 2018 final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
with the Agency. On February 19, 2016, the Agency advertised a Senior Executive Service (SES)
position of Deputy Associate Director, Training and Management Assistance Program under
Vacancy Announcement No. 16-184-PMF-SES. Complainant applied for the position on or about
March 2, 2016. The record reveals that Complainant was informed on April 11, 2016, that her
application was not among the best qualified and she was not referred for further consideration.
On January 11, 2017, Complainant was mistakenly sent a disposition letter from the Agency’s
Human Resources (HR) Office indicating that she was among the best qualified applicants who
were referred to the selecting official for further consideration, but she had not been selected.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120181420

2
Complainant alleged that she was removed from consideration for the position when the Office of
Inspector General (OIG) disclosed information about her prior OIG complaint to the Planning and
Policy Analysis (PPA) Office. Complainant had raised allegations regarding the Agency’s
classification of her employment records and the OIG subsequently closed the complaint as outside
its jurisdiction. Complainant also alleged that she was not selected for the position because the
Agency “documented [her] as a non-traditional referral type” and that she assumed a “traditional
referral type” was selected. Complainant clarified that she meant, “not what you know, but who
you know.”

The Assistant Inspector General for Investigations (AIG) denied that the OIG disclosed
Complainant’s information to the PPA Office and averred that it was not the OIG’s practice to
disclose such information without consent. A Human Resources Specialist (HRS) affirmed that
the Agency evaluated applicants for the Deputy Associate Director position by reviewing their
resumes and determining whether they had the required experience. The Agency determined that
26 applicants were eligible. Complainant was notified by email on April 11, 2016 that she was
not eligible. HRS said that Complainant did not meet the five Executive Core Qualifications and
three Mandatory Technical Qualifications.

On February 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (Black), and in reprisal
for prior protected EEO activity when, on April 11, 2016, Complainant received a notification
indicating that she was not referred for the Deputy Associate Director of Training and Management
Assistant Program position advertised under Vacancy Announcement No. 16-184-PMF-SES.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

In the decision, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal. The Agency concluded that Complainant failed to sufficiently rebut
management’s explanation that her application was not referred for further consideration because
her resume was deficient in eight separate elements, whereas the 26 candidates who advanced met
all elements. Accordingly, the Agency found that Complainant had not been subjected to
discrimination or reprisal as alleged.

2 Initially, Complainant included several additional allegations regarding the Agency’s failure to
correct her employment records from another agency and the OIG’s handling of her complaint
concerning that matter. Those allegations were not accepted as part of the formal complaint, and
Complainant did not challenge the framing of her claims prior to the investigation or on appeal.
0120181420

3
CONTENTIONS ON APPEAL

Complainant contends that she properly demonstrated that she was qualified for the position at
issue and was subjected to discrimination. Complainant argues that her qualifications show that
she was the superior candidate. Complainant claims that she was removed from the Best Qualified
list due to retaliation. Accordingly, Complainant requests that the Commission reverse the final
decision.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To establish a prima facie case of discrimination based on race, color, or sex, Complainant must
demonstrate that: (1) she was a member of a protected class; (2) she was subjected to an adverse
employment action concerning a term, condition, or privilege of employment; (3) she was treated
less favorably than similarly situated employees outside her protected class; and (4) a causal
relationship existed between his membership in the protected class and the adverse action.
McDonnell Douglas, 411 U.S. at 802; Complainant v. Fed. Reserve Sys., EEOC Appeal No.
0120130692 (Sept. 3, 2015); White v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120062651
(Apr. 17, 2007). To establish a prima facie case of discrimination based on reprisal, Complainant
must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus
0120181420

4
exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

In this case, the Agency has articulated legitimate, non-discriminatory reasons for its actions.
Specifically, the HR Specialist confirmed that her office reviewed the applicants’ resumes to see
if applicants met the accomplishments and experience requirements as they related to position’s
Executive Core Qualifications and Mandatory Technical Qualifications. ROI, at 229.
Complainant submitted a cover letter, resume, SF-50, and two college transcripts. Applicants who
met the above requirements were referred to the Executive Resources Board for further
consideration. Id. Twenty-six candidates were deemed qualified for the position based on their
submitted application materials and 13 of those candidates were referred to the selecting official
as the best qualified. Id. at 230, 269. Complainant was not referred for further consideration for
the position at issue because her resume did not demonstrate the required five Executive Core
Qualifications and three Mandatory Technical Qualifications. Id. The HR Specialist affirmed that
Complainant was notified of this determination by email on April 11, 2016 but was mistakenly
issued the January 2017 Disposition Letter which was intended to be issued only to applicants who
were forwarded to the selecting official. Id. at 231.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Here, Complainant has not rebutted the Agency’s explanation that Complainant was not referred
for further consideration because her application materials did not demonstrate the position’s
required Executive Core Qualifications and the Mandatory Technical Qualifications and that she
was mistakenly issued a disposition letter that erroneously indicated that she had been referred a
highly qualified candidate. Complainant simply argues, without evidence, that she was qualified
for the position but removed from the best qualified list due to discrimination and retaliation for
her complaint to the OIG. There is no evidence demonstrating that OIG disclosed any information
about Complainant’s OIG complaint. ROI, at 180.

In the absence of evidence of unlawful discrimination, the Commission will not second guess the
Agency's assessment of the candidates' qualifications. Tx. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. at 259. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory or retaliatory animus. The evidence supports the
Agency’s articulated reasons, and, beyond her bare assertions, Complainant has failed to meet her
burden of proving that the actions in question were motivated in any way by her protected classes.

0120181420

5

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
0120181420

6
Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means
the national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 27, 2019
Date